Mr & Ms Y and Tipperary County Council (FOI Act 2014)

Whether the Council was justified in its decision to refuse access to details of a complaint made of alleged unauthorised development and to details of the identity of the complainant(s)

25/05/2018

Background

On 11 December 2017, the applicants, through their solicitors, sought details of information given to the Council concerning alleged unauthorised development at their property and the identity of the informant. On 4 January 2018, the Council refused the request under sections 35(1)(a) and 37 of the FOI Act. The applicants sought an internal review of that decision on 18 January 2018, following which the Council affirmed its decision under sections 35(1)(a), 37(1), and 42(m) of the FOI Act. On 11 April 2018, the applicant sought a review by this Office of the Council's decision.

In carrying out my review, I have had regard to the correspondence between the Council and the applicants as set out above. I have also had regard to the communications between this Office and both the applicants and the Council on the matter. I have also had regard to the contents of the records provided by the Council to this Office for the purpose of the review.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse access to details of the complaint made to the Council and to the identity of the complainant(s).

Preliminary Matters

In their request for internal review and in their submission to this Office, the applicants made reference to further records held by the Council, namely reports on the site inspections of the applicants' property. It is important to note that these records are outside the scope of this review, and should the applicants seek access to these records, they should make a fresh request to the Council for access.

Analysis and Findings

Among other things, the Council provided this Office with copies of correspondence it received concerning the alleged unauthorised development. This correspondence contains the information sought, namely the details of the complaint made and the identity of the complainant(s). The Council relied on sections 35(1)(a), 37, and 42(m) of the FOI Act to refuse the request. As section 42 serves to restrict the applicability of the FOI Act in certain circumstances, I have considered this provision first.

Section 42(m)(i)

Section 42(m)(i) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that information must have been provided in confidence, while the third is that the information must relate to the enforcement or administration of the law.

First Requirement

Having examined the relevant records, I am satisfied that the disclosure of the release of the details of the complaint could reasonably be expected to lead to the revelation of the identity of the person(s) who provided that information. I find, therefore, that the first requirement is met in respect of both the identity of the person(s) who provided the information and the details of the information provided.

Second Requirement

The second requirement is that the provider of information must have provided that information in confidence. It is arguable that if people providing information to the Council in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. The records in this case contain a clear statement that the complainant(s) provided the information in confidence.

In its submission to this Office, the Council stated that the circumstances surrounding the receipt of complaints regarding breaches of planning law requires an understanding that the identities of complainants will not be disclosed. According to the Council, the effectiveness of planning legislation in controlling development is dependent on there being a proper system of enforcement in place. It stated that reform of planning legislation has involved to a greater extent members of the public supplying information and assisting the Council in enforcement.

In my view, it is not generally appropriate that the details of a complaint of alleged unauthorised development would be treated as confidential or that persons making such complaints could reasonably expect that the nature of the complaint would be treated as confidential. Indeed, if a planning authority wished to follow up such a complaint, I fail to see how it could do so fairly without informing the person(s) against whom the allegations were made of the nature of the alleged unauthorised development. However, I fully accept that complainants would have a general expectation that their identities be treated as confidential. The withholding of the complainant's identity should not hamper the planning authority's ability to investigate the complaint made

I note in this case that the Council issued a warning letter which described the nature of the alleged unauthorised development being investigated. The question I must consider is whether the second requirement is met in respect of the specific information sought. In light of my finding that the disclosure of the release of the details of the complaint could reasonably be expected to lead to the revelation of the identity of the person(s) who provided that information, I find that it is.

Third Requirement

The third requirement is that the information provided relates to the enforcement or administration of the law. The Council is charged with the enforcement of legislation relating to planning and development, including the control of breach of planning law under the Planning and Development Acts 2000-2017 and the Planning and Development Regulations 2001 to 2018. Therefore, I am satisfied that the third requirement is met in this case.

Having found that each of the three requirements are met, I find that section 42(m)(i) the FOI Act applies and that the Council was justified in refusing the applicants' request for the identity of the person(s) who made the complaint of alleged unauthorised development and the details of the complaint made as contained in the records held by the Council.

In light of this finding, it is not necessary for me to consider whether sections 35 or 37 of the Act apply.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse access to the identity of the person(s) who made a complaint against the applicants regarding alleged unauthorised development under section 42(m)(i) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.